Jharkhand High Court
Barun Kumar Malviya vs Anil Kumar Malviya on 15 October, 2019
Author: Sujit Narayan Prasad
Bench: Sujit Narayan Prasad
[1]
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(C) No.4719 of 2019
Barun Kumar Malviya . ... Petitioner
Versus
1. Anil Kumar Malviya
2. Sanjay Kumar Malviya
3. Kiran Devi
4. Askhay Kumar Malviya
5. Neha Malviya
6. Niki Malviya
7. Smt. Pusplata Malviya
... Respondents
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CORAM: HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
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For the Petitioner : Mr. Sudarshan Shrivastava, Advocate For the Respondents : None
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04/Dated 15th October, 2019
1. This writ petition is under Article 227 of the Constitution of India whereby and whereunder order dated 18.06.2018 passed in Partition Suit No.401 of 2015 by Sub-Judge-I, Ranchi has been assailed whereby and whereunder the petition filed under Order VI Rule 17 read with Section 151 of the CPC dated 04.08.2016 by the petitioner/plaintiff has been rejected.
2. The petition has been filed on 04.08.2016 under Order VI Rule 17 read with Section 151 of CPC seeking therein leave of the Court to allow the plaintiff to make addition in the plaint as also the prayer made therein to the effect as to insert the prayer pertaining to declaring the registered deed executed in favour of defendant No.7 on 16.10.2004 as illegal, null and ab-initio void but the same has been rejected on the ground that if the said amendment would be allowed, the nature and character of the suit would change from partition suit to that of the title suit.
The said order is under challenge in the present writ petition.
[2]3. Before entering into the legality and propriety of the impugned order, this Court deem it fit and proper to narrate certain factual aspects which is relevant for the purpose.
4. The petitioner/plaintiff has filed a partition suit for partition of the properties mentioned in Schedule-A & B of the plaint measuring a total area of 14 decimals of Plot No.1928, Sub Plot No.1928/D and 1928/C under R.S. Khata No.253 situated in the village-Argora, P.S.-Argora, District-Ranchi under Revenue Thana No.209 and for appointment of survey knowing Pleader Commissioner for carving out separate Takhta out of the said property.
The father of the parties late Ram Nandan Malviya died on 27.06.2015 leaving behind the petitioner and the defendants as the legal representatives.
The mother of the petitioner/plaintiff has also died in the year 2003 itself. The father of the petitioner purchased part of the suit property in his name and part of the suit property in the name of his wife in the year 1983.
After the death of the mother and father, the petitioner filed a partition suit being Partition Suit No.401 of 2015 for 1/4th share of the suit property having total area of 14 decimals in which after issuance of summons, the defendants have appeared as also the defendant No.7 who has put her appearance on 28.03.2016 and filed written statement on 05.05.2016.
The petitioner after going across the pleadings made in the written statement filed on behalf of the defendant No.7 came to know that she is claiming title over the suit property mentioned in Schedule-A of the plaint by virtue of registered deed of sale dated 16.10.2004 which has been executed by the father of the petitioner in her favour which led the petitioner to file an application under Order VI Rule 17 read with Section 151 of CPC for inserting new paragraph no.18 and accordingly prayed for amendment in the relief portion of the plaint seeking a decree declaring the sale deed dated [3] 16.10.2004 executed in favour of the defendant No.7 by the father of the petitioner as null and void and other consequential reliefs.
The said application has duly been responded by the defendant No.7 and upon hearing the parties, the order has been passed by the trial Court rejecting the amendment petition which is under challenge in this writ petition.
5. Mr. Sudarshan Shrivastava, learned counsel for the petitioner while assailing the aforesaid order has raised the issue that the trial court has committed gross illegality in rejecting the petition filed under Order VI Rule 17 which is without taking into consideration that the same will be nothing but will lead to multiplicity of proceeding and if the said amendment would be allowed, the nature and character of the suit will not be changed since the petitioner as also the defendant No.7 are the co-partioners of the property in question.
6. The provision of Order VI Rule 17 confers power upon the court to make necessary amendment which is relevant for proper adjudication of the issues, however, the provision of Order VI Rule 17 conferring powers upon the court to allow the amendment has been repealed but subsequently in pursuance to the amendment incorporated in the Code of Civil Procedure the power to allow amendment has again been conferred to the trial court under Order VI Rule 17 of the CPC effective w.e.f. 01.07.2002 with the condition that the amendment can be allowed at any stage of the trial but subject to condition that the plaintiff or defendant, as the case may be, is required to show due diligence as to what prevented such party in not bringing the relevant facts/prayer at the time of filing of the plaint or the written statement, as the case may be.
7. The provision of Order VI Rule 17 has been incorporated by the Hon'ble Courts wherein the condition for allowing the amendment and refusing to allow the amendment has been considered by the Hon'ble Apex Court in the cases of Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr., reported in (2008) 14 SCC 364, in the case of Revajeetu Builder and [4] Developers vs. Narayanaswamy and Sons and Ors., reported in (2009) 10 SCC 84.
8. The condition for not allowing the amendment:
(i) when the nature and character of it is changed;
(ii) when the amendment would result in introducing new cause of action and intends to prejudice the other party;
(iii) when defeats the law of limitation if fresh suit of amendment plaint would be barred then as a general rule it would be rejected but to avoid multiplicity it may be allowed.
It has further been held by Hon'ble Apex Court in the case of Rajkumar Gurawara (dead) Thr. L.Rs. vs. M/s S.K. Sarwagi and Co. Pvt. Ltd., reported in AIR 2008 SC 2303 that a pre-trial amendment is to be allowed as the opposite party would not be prejudiced because he will have an opportunity of making amendment.
Further it has been held that after commencement of the trial, due diligence is to be shown as has been held in the case of Rajesh Kumar Aggarwal and Ors. vs. K. K. Modi and Ors., reported in (2006) 4 SCC 385 and Rameshkumar Agarwal vs. Rajmala Exports Pvt. Ltd. and Ors., reported in (2012)5 SCC 337.
9. The amendment is to be disallowed if a fresh suit on the amendment claim would be barred by limitation on the date of application as has been held in the case of L.J.Leach and Co. Ltd., & Anr. Vs. Messrs. Jairdine Skinner and Co Respondents. reported in (1957) SCR 438, in the case of T.N. Alloy Foundary Co. Ltd. Vs. T.N. Electricity Board & Ors. reported in (2004) 3 SCC 392, State Bank of Hyderabad vs. Town Municipal Council, reported in (2006) 13 SCALE 332, Ashutosh Chaturvedi Vs. Prano Devi Alias Parani Devi & Ors. reported in (2008) 15 SCC 610, and in the case of Ravajeetu Builders and Developers Vs. Narayanaswamy and Sons & Ors., reported in (2009) 10 SCC 84.
[5]It has been held in a judgment rendered in the case of Siddalingamma and Anr. vs. Mamtha Shenoy, reported in (2001) 8 SCC 561 that when amendment is allowed it relates back to the date of institution of original suit.
10. In the background of this settled position of law, the factual aspect as also the finding recorded in the impugned order has been appreciated by this Court.
11. The admitted position herein is that the amendment as has been sought for by the plaintiff is in a partition suit and there is no dispute about the position of law that the relief sought for in the partition suit is quite different to that of the relief sought for in the title suit since in the partition suit the adjudication is to be made about the share since there is no dispute in between the parties with respect to the title over the property in question but in the title suit the declaration is to be given with respect to the title of a party depending upon its adjudication, therefore, the nature and character of the suit pertaining to partition suit is quite different to that of the nature and character of the suit pertaining to title suit.
12. It is admitted case of the petitioner that a partition suit has been filed with respect to the property owned and purchased by the father and mother and after death of the father sometime in the year 2015 the present partition suit has been filed for declaration of 1/4th share.
13. After issuance of notice upon the defendants including the defendant No.7, written statements have been filed and the defendant No.7 has taken the stand in the written statement that part of the property has been transferred by his father by virtue of the registered sale deed dated 16.10.2004 which led the petitioner to file an application for amendment in the plaint as also prayer made therein for declaration of the said registered sale deed executed in favour of the defendant No.7 as null and void.
14. The trial court has rejected the said amendment petition which according to the considered view of this Court suffers from no infirmity for the reasons:
[6](i) As has been discussed hereinabove that there is difference in between the nature of partition suit in comparison to that of the title suit. The partition suit cannot be converted into the title suit and if allowed to be converted, the nature and character of the suit along with cause of action will also be changed.
Keeping the aforesaid position into consideration the amendment has rightly been rejected otherwise the nature and character of the partition suit will be allowed to be changed to that of the declaratory suit which would be contrary to the aim and object of the provision of Order VI Rule 17 of the CPC.
Admittedly the registered sale deed was executed in favour of the defendant No.7 on 16.10.2004, therefore, the said instrument cannot be said to be subsequent development occurred in course of pendency of the suit.
However, the stand has been taken that the said fact came into notice of the petitioner when the written statement has been filed and the said fact has been placed therein but the question is that the registered sale deed dated 16.10.2004 is being sought to be quashed in a partition suit filed in the year 2015 and as such, the same will lead to the question of limitation as has been held by the Hon'ble Apex Court in the case of Rajkumar Gurawara vs. S.K. Sarwagi and Company Private Limited and Anr. (supra) and Revajeetu Builder and Developers vs. Narayanaswamy and Sons and Ors. (supra) that the amendment is fit to be disallowed if a fresh suit on the amended claim would be barred by limitation on the date of application and further as has been held in the case of Siddalingamma and Anr. vs. Mamtha Shenoy (supra) that where amendment it relates back to the date of institution of original suit.
In view of such position of law that if the amendment would be allowed incorporating the relief sought [7] for for declaration of registered sale deed executed on 16.10.2004 to be null and void, the same will seriously be barred by limitation since no fresh suit can be filed for getting the declaration about nullity of the registered sale deed dated 16.10.2004 in the year 2015 and further if the amendment would be allowed by incorporating the prayer to the effect for declaring the registered sale deed dated 16.10.2004 as nullity it will relate back to the institution of original suit, the date of original suit herein is dated 22.07.2015 and as such, by way of amendment the period of limitation will be condoned which is not permissible.
(ii) It is evident from the plaint that the suit has been filed by making payment of Court fee to the extent of Rs.250/- on the ground that the suit is being simple suit for partition and in this ground also the amendment cannot be allowed rather the matter would have been different if ad-valorem court fee would have been deposited by the petitioner but that is not the case herein and therefore, the simple suit for partition cannot be allowed to be converted into a suit in the nature of declaratory suit.
15. This Court, based upon the aforesaid reason, is of the view that the finding recorded by the trial court requires no interference by this Court under Article 227 of the Constitution of India since there is no error apparent on the face of record.
16. In view thereof, the writ petition fails and stands dismissed.
(Sujit Narayan Prasad, J.) Saurabh